8.  The applicant was born in Tunisia in 1965. He arrived in Bosnia and Herzegovina during the 1992-95 war and joined the foreign mujahedin. The mujahedin phenomenon is explained by the International Criminal Tribunal for the former Yugoslavia in the Hadžihasanović and Kubura judgment, IT-01-47-T, §§ 411-18, 15 March 2006, as follows:
“411. Witnesses for both the Prosecution and Defence agreed that the foreign mujahedin began to arrive in Zenica and Travnik during 1992, particularly in the second half of the year. 412. At that time, the borders of the RBiH (Republic of Bosnia and Herzegovina) were controlled by the organs of Republika Srpska or HVO authorities, which made it very difficult for the RBiH legal authorities, more specifically the MUP (Ministry of the Interior), to control the entry and movements of foreigners in the RBiH. Foreign mujahedin reached Bosnia via the Republic of Croatia and via Herzegovina where the HVO had established power. They frequently arrived as members of humanitarian organisations and did not register with the RBiH authorities. 413. Most of the foreign mujahedin came from the countries of North Africa, the Near East and the Middle East, i.e. Algeria, Afghanistan, Saudi Arabia, Qatar, Egypt, Iran, Pakistan, Tunisia, Turkey and Yemen. Some also came from European countries, but how many is not known. 414. Foreign mujahedin were easily recognisable by their traditional clothing and dark complexion. They had long beards and wore turbans or hats. Some wore camouflage uniforms or parts of camouflage uniforms, while others wore long white robes. There were also those with scarves around their head and neck. Most of them did not know the Bosnian language and spoke only Arabic. The foreign mujahedin carried automatic rifles and rocket launchers. Some had sabres or long knives. Some witnesses recognised the insignia the foreign mujahedin wore on their shoulders. 415. According to the evidence characterising the position of the foreign mujahedin, the term ‘mujahedin’ refers to Muslims fighting a jihad, or holy war. The foreign mujahedin went to Bosnia in order to help their Muslim brothers defend themselves against the Serbian aggressor and intended to leave the country once peace had been re-established. According to these same sources, the foreign mujahedin also wanted to spread their beliefs, which they felt were the most faithful expression of Islamic texts. 416. Most foreign mujahedin in Central Bosnia seem to have arrived as members of humanitarian organisations. Defence witnesses agreed that during the first phase they were involved in humanitarian activities. They provided quite significant aid to the local Muslim population, particularly food, and organised classes in religious instruction. 417. Starting in the second half of 1992 when conflicts broke out in Central Bosnia, foreign mujahedin became fighters. They furnished the local population with weapons and uniforms and provided military training. As explained below, the foreign mujahedin took part systematically in combat side by side with the ABiH. 418. Given their humanitarian involvement, the foreign mujahedin initially enjoyed a degree of trust and had the support of the local population. Young men, even minors, joined them. ABiH soldiers deserted their own units to join the ranks of the foreign mujahedin, especially in order to benefit from their material support. Some of the mujahedin married girls from the region. Over time, however, the foreign mujahedin tried to promote their view of fundamental Islam. They ordered the Bosnian women to cover their heads, condemned the consumption of alcohol and insisted that the local Muslims practice their religion. The foreign mujahedin burst into cafés and restaurants that served alcohol and if they saw a woman or young girl dressed in what they considered inappropriate fashion, they voiced their strong opposition. As a result of this rigid attitude, relations between the foreigners and the local population deteriorated.”
9.  Although he had never been given citizenship or a residence permit in Bosnia and Herzegovina, on 28 December 1995 the applicant obtained a national identity card on the basis of a forged decision of 15 February 1992 granting citizenship to a certain Marvon Mufti (that national identity card was revoked in 2002). In 1997 the applicant married a citizen of Bosnia and Herzegovina. They have two children, born in 1998 and 2000. It would appear that the applicant never returned to Tunisia after the 1992-95 war.
10.  On 24 April 2009, during a random check, the Aliens Service of the Ministry of Security found that the applicant was an illegal immigrant in Bosnia and Herzegovina and placed him in Istočno Sarajevo Immigration Centre for deportation purposes. On 14 May 2009 he lodged an application for judicial review through his counsel, but the application was ultimately rejected as out of time. The initial detention period was extended on a monthly basis. Each of the extension orders was then upheld by the Court of Bosnia and Herzegovina (“the State Court”) and some of them by the Constitutional Court. Appeals concerning the remaining extension orders are still pending before the Constitutional Court.
11.  On 19 May 2009 the Aliens Service established that the applicant was a threat to national security, ordered his deportation and prohibited his re-entry for a period of five years. It relied on secret intelligence reports. On 22 June 2009 the Ministry of Security upheld the decision. On 10 November 2009 the State Court, having assessed the secret evidence, also upheld the deportation order. An appeal is pending before the Constitutional Court.
12.  On 24 July 2009 the applicant claimed asylum. He maintained that Tunisian citizens who had joined the foreign mujahedin during the war in Bosnia and Herzegovina were treated in Tunisia as suspected terrorists and were subjected to ill-treatment. He added that Tunisian authorities had visited his family and had enquired about him shortly after the opening of his deportation proceedings. The applicant could not explain, however, how those authorities had learned about his activities in Bosnia and Herzegovina. The applicant submitted a statement by Mr Kousri, a Tunisian human-rights activist, asserting that a certain Badredine Ferchichi had been sentenced by a Tunisian military tribunal to three years’ imprisonment for having fought in the war in Bosnia and Herzegovina.
13.  On 27 July 2009 the Asylum Service interviewed the applicant with the help of an interpreter since the applicant did not speak any of the official languages of Bosnia and Herzegovina. It also had regard to reports of the United States Department of State, Amnesty International and Human Rights Watch on Tunisia, which mentioned many cases of ill-treatment meted out to suspected terrorists. The practices reported included hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns. Allegations of ill-treatment were reportedly not investigated by the Tunisian authorities.
14.  On 7 August 2009 the Asylum Service refused the asylum claim. It held that it had not been shown that the applicant would indeed be treated in Tunisia as a suspected terrorist and that he therefore did not face a real risk of being subjected to ill-treatment. The statement concerning the situation of Mr Badredine Ferchichi was not admitted to the file because the applicant had failed to provide a translation into an official language of Bosnia and Herzegovina. On 10 November 2009 the State Court upheld that decision. An appeal is pending before the Constitutional Court.
15.  On 3 December 2009 the applicant lodged an application for interim measures with the Constitutional Court asking that his deportation be stayed pending the Constitutional Court’s decision on the merits of the case.
16.  Removal directions for 10 December 2009 at about 2 p.m., issued on 8 December, were served on the applicant on 10 December at about 10 a.m. The applicant immediately applied for interim measures with the Court and the President of the Fourth Section of the Court granted an interim measure the same day at about 1 p.m. (see paragraphs 4-6 above).
17.  On 12 January 2010 the Constitutional Court refused the applicant’s application for interim measures. The decision was notified to the applicant on 1 February 2010.
18.  The applicant is still in Istočno Sarajevo Immigration Centre.